Tham v Pavone
[2023] VCC 2333
•13 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
Case No. AP-23-0765
| CHARLES THAM | Appellant |
| v | |
| DAVID PAVONE | Respondent |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 December 2023 | |
DATE OF JUDGMENT: | 13 December 2023 | |
CASE MAY BE CITED AS: | Tham v Pavone | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2333 | |
REASONS FOR JUDGMENT
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Subject:APPEAL – PERSONAL SAFETY INTERVENTION ORDERS ACT 2010
Catchwords: Appeal – Personal Safety Intervention Order – error of law – order of learned Magistrate set aside - relevant principles
Legislation Cited: Personal Safety Intervention Orders Act 2010
Judgment: Appeal granted
APPEARANCES: | Counsel | Solicitors |
Appellant | In person | |
Respondent | Did not appear |
HER HONOUR:
Background
On or about 9 January 2023, Mr Charles Tham (“the appellant”) obtained an Interim Personal Safety Intervention Order (“the Interim PSIVO”) against Mr David Pavone (“the respondent”) (“the application”).
The application states, relevantly:
“The resp David Pavone is the associate of my neighbour ….On 31 October 2022 at approx. 4.30am the resp came to my home and slept in front of my door. I believe the resp did this to make me scared. I was so scared and called 000…Other incidents which have occurred were on the 28th October 2022 at approx. 9pm when I saw the resp who was with my neighbour…The resp tried to hit me with a piece of wood out of nowhere, he then asked me to come near him and said he wanted to talk to me…I believe he was trying to provoke me. I kept my distance from him and began to take a video of him while he was trying to talk to me. He went away for a while and came back, I then started recording again and I contacted 000…On 30th October 2022 at approx. 12.30opm the resp came to my house and kicked my door pretending to clean with a vacuum at my door [step]. I took a recording of this and called 000 which made the resp quite angry…These 3 incidents made me very scared and I did not go out for 3 days in a row because I am scared that the resp is waiting for me outside and will hit me from behind. I am [worried] that I will get hurt. I believe the resp will continue to behave in this manner because the resp is constantly keeping an eye on my movements. The resp is always around the building and communicating with my neighbour. My anxiety and depression and paranoia has increased significantly which is why I am seeking an order to [be] made for myself and my daughter who has been witnessing this behaviour.”
The Facts
The application was listed for a final hearing on 19 June 2023. Neither the appellant nor the respondent attended on that date.
On 19 June 2023, the application was struck out by the learned Magistrate.
Legislative Framework
The appeal comes before this Court pursuant to the Personal Safety Intervention Orders Act 2010 (“the Act”).
By s93 of the Act, an appeal must be filed with 30 days of the relevant decision. The Notice of Appeal in this case was filed within time.
Section 96 of the Act provides:
“(1)The appeal is by way of a rehearing by the County Court or the Supreme Court.
(2)On appeal, the County Court or Supreme Court may –
(a) confirm the relevant decision; or
(b) set aside the relevant decision; or
(c) vary the relevant decision and make any other order the Magistrates’ Court…could have made and exercise any other powers that the Magistrates Court…may have exercised;
…”
The conduct of this appeal is governed by the matters referred to by his Honour Justice John Dixon, in AAA v County Court of Victoria & Ors (“AAA”).[1]
[1] [2023] VSC 13
Relevantly to this appeal, in AAA his Honour observed that the powers of the appeal court are exercisable only where the appellant can demonstrate that the original decision maker made some legal, factual or discretionary error.[2]
[2] Ibid, at [50]
Such an error may be proved after an examination of the transcript of the Magistrates’ Court proceedings, to examine the conduct of the proceeding and any reasons for the decision made.
Did the Magistrate’s decision involve an Error of Law?
In this matter, there was no transcript of the proceeding. An examination of the recording of the hearing demonstrates only that neither party appeared at the hearing on 19 June 2023. It was in those circumstances that the application was struck out.
At the hearing of this appeal, the appellant gave the following evidence as to the grounds of his appeal and from a procedural point of view, what occurred on 19 June 2023. That evidence was as follows:
(a)he knew that the final hearing was scheduled to take place on 19 June 2023;
(b)he wanted to attend that hearing and intended to give evidence in support of his application to obtain a final PSIVO;
(c)that is because he needed a final order to be made against the respondent, protecting himself and his daughter;
(d)on 19 June 2023, he contacted the Magistrates’ Court to obtain a Webex link, so that he could appear at the hearing;
(e)the Magistrates’ Court did not send him a Webex link;
(f)he contacted the Magistrates’ Court a second time on 19 June 2023 and was told that the application had been struck out, because no party appeared at Court;
(g)he went in person to the Magistrates’ Court on that same day, to see if he could have the matter heard in person;
(h)he was told by registry that the learned Magistrate had left for the day and was not available;
(i)he asked about having a re-hearing, but was told that the only option available to him was to appeal the order of the learned Magistrate to the County Court of Victoria; and
(j)he filled in the requisite paperwork to initiate this appeal, on the same day.
Relevant legal principles
It is well established that a failure to afford procedural fairness to a party to a dispute, will involve an error of law, namely jurisdictional error, if that failure was material to the tribunal’s decision.
In Nathanson v Minister for Home Affairs,[3] Keifel CJ, Keane and Gleeson JJ, observed:
“There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration…a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case…[the Court] does not require demonstration of how that party might have taken advantage of that lost opportunity…To the contrary…[the Court] proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.”
[3] [2022] HCA 26
The facts of this case demonstrate and I find, that the appellant was denied a reasonable opportunity to present his case on 19 June 2023 in the Magistrates’ Court – namely the evidence he wished to give and submissions he wished to make, in support of his application for a final PSIVO.
Furthermore, the evidence satisfies me that the appellant made more than one attempt to make sure that he was present at the final hearing scheduled on 19 June 2023, by actively seeking to obtain a Webex link so that he could attend the hearing (operating under the presumably mistaken belief that the hearing would take place online) and then by contacting the Magistrates’ Court Registry again, by telephone, at which time he was told that his application had already been struck out.
The appellant gave evidence that he intended to appear and give evidence at the final hearing of his application on 19 June 2023. I am satisfied of the truth of this evidence and I find that the nature of the actions he took on that day, corroborate this assertion.
I am satisfied that the evidence and submissions which the appellant would have made on 19 June 2023, had he been afforded a reasonable opportunity to do so, would have been material to the learned Magistrate’s decision whether to grant a final PSIVO.
Given these matters, I am satisfied that decision made by the learned Magistrate to strike out the appellant’s application for a Final PSIVO, was attended by an error of law, namely jurisdictional error in the form of a failure to provide procedural fairness to the appellant on 19 June 2023.
Conclusion and Orders
Having found that the decision of the learned Magistrate was attended by an error of law, I am satisfied that the appeal should be granted and that the order made on 19 June 2023, should be set aside.
I direct that the Registrar of the County Court of Victoria notify the Registrar of the Magistrates’ Court of Victoria of the outcome of this appeal. I also direct that a copy of these reasons be provided to the Registrar of the Magistrates’ Court of Victoria.
As an aside, I note that the result of setting aside of the final Order made by the learned Magistrate on 19 June 2023, is that the Interim PSIVO made on 9 January 2023, remains operative until the further order of the Magistrates’ Court of Victoria.
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